Graham v. Koerner

FILED
United States Court of Appeals
Tenth Circuit

February 25, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

LISA JANE GRAHAM,

Petitioner - Appellant, No. 08-3263
v. (D. Kansas)
RICHARD KOERNER, Warden, (D.C. No. 5:06-CV-03317-JAR)
Topeka Correctional Facility;
STEPHEN N. SIX, Attorney General
for the State of Kansas,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.

A Kansas state-court jury convicted Lisa J. Graham on two counts of

attempted first-degree murder and three counts of aggravated assault of a law-

enforcement officer. The aggravated-assault convictions were reversed on direct

appeal. After unsuccessfully pursuing state collateral remedies, Ms. Graham filed

an application for federal habeas relief under 28 U.S.C. § 2254 in the United

States District Court for the District of Kansas on November 17, 2006. The

application raised 12 challenges to her attempted-murder convictions. The

district court ruled that she had procedurally defaulted eight of her claims and

that the remaining four lacked merit. Ms. Graham, appearing pro se, seeks a
certificate of appealability (COA) from us to challenge the district court’s rulings.

See 28 U.S.C. § 2253(c)(1)(A) (COA is necessary to appeal denial of relief in

§ 2254 proceeding). Because a reasonable jurist could not debate the correctness

of the district court’s decision, we deny her application for a COA and dismiss

the appeal.

I. BACKGROUND

Ms. Graham’s convictions arose from a confrontation with police in her

home. Knowing that authorities were looking for her to execute an arrest warrant,

Ms. Graham doused her house in gasoline and positioned a candle and bowl of

charcoal fluid behind her front door. She also strung a wire across the back door

to prevent it from opening. Two police officers knocked on the front door and

received no response. They then entered Ms. Graham’s home through an

unlocked window, whereupon Ms. Graham retreated to the basement and lit

several roman candles (a firework that propels flaming balls) in an effort to “burn

the house down.” R. Vol. 2 (State Ct. Tr. Vol. III) at 388. It took the officers

one to two minutes to exit the premises. With fire spreading through the house,

one of the officers reentered to pull Ms. Graham out alive. As the officer rushed

towards her, she brandished a firearm, which discharged as she was tackled.

Neither the officer nor Ms. Graham was struck by the bullet.

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II. DISCUSSION

In her § 2254 application Ms. Graham raised three claims that she had

pursued on direct appeal in state court—namely, that (1) her attempted-murder

conviction rested on insufficient evidence of guilt; (2) she was charged with

multiplicitous counts; and (3) the prosecutor made untrue and inflammatory

statements in his closing argument. She also complained that her state-court

motion for collateral relief had been summarily denied. The district court

rejected these claims on the merits. In addition, the court ruled that eight claims

in Ms. Graham’s § 2254 application had been procedurally defaulted because they

had not been raised in state court. Construed liberally, Ms. Graham’s request for

a COA challenges each of the district court’s rulings. See United States v.

Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (pro se filings must be liberally

construed).

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

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“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but she must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of a case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

Also pertinent to our standard of review, the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) provides that when a claim has been

adjudicated on the merits in state court, a federal court will grant habeas relief

only when the applicant establishes that the state-court decision was “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). As we have explained:

Under the “contrary to” clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the [Supreme Court] has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, relief is provided
only if the state court identifies the correct governing legal principle
from the Supreme Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case. Thus we may not issue a
habeas writ simply because we conclude in our independent judgment

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 that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and

internal quotation marks omitted). Therefore, for those of Ms. Graham’s claims

that were adjudicated on the merits in state court, “AEDPA's deferential treatment

of state court decisions must be incorporated into our consideration of [her]

request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

A. Sufficiency of the Evidence

Ms. Graham argues that the state adduced insufficient evidence of intent to

convict her of attempted first-degree murder. In assessing such an argument, a

court must defer to the fact-finding role of the jury. Thus, evidence of guilt is

sufficient if “after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). When a habeas applicant’s insufficient-evidence claim has been

addressed in state court, § 2254(d) requires an additional layer of deference. See

Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007). Habeas relief may not be

granted unless the state court’s application of the Jackson standard was

objectively unreasonable. See id.

The Kansas Supreme Court ruled on direct appeal that a rational juror could

have found that Ms. Graham “coaxed police officers into her gasoline-soaked

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house in order to murder them and end her own life.” State v. Graham, 83 P.3d

143, 152 (Kan. 2004). This was not an unreasonable application of Jackson.

Ms. Graham knew that police officers were looking for her. She poured gasoline

throughout her house while placing a wire across her back door and an incendiary

device behind the front door. She nevertheless left a window unlocked. When

two police officers entered through that window she attempted to “burn the house

down.” R. Vol. 2 (State Ct. Tr. Vol. III) at 388. And, perhaps most

incriminating, a fire inspector testified at trial that the fire originated under the

window in which the officers had entered. Viewing this evidence in the light

most favorable to the government, a rational juror could conclude that

Ms. Graham attempted to kill the officers who entered her home by trapping them

inside as it burned. At the least, the Kansas Supreme Court was not objectively

unreasonable in reaching that conclusion. See Diestel, 506 F.3d at 1267. No

reasonable jurist could debate the district court’s decision regarding the

sufficiency of the evidence.

B. Multiplicitous Charges

Ms. Graham alleges that the state’s complaint contained multiplicitous

charges—namely, both aggravated assault and attempted murder for the same

conduct—in violation of the Double Jeopardy Clause’s prohibition against

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multiple convictions for the same offense. 1 See United States v. Barrett, 496 F.3d

1079, 1095 (10th Cir. 2007) (multiplicitous charges are those that “cover the same

criminal behavior” (internal quotation marks omitted)). The district court

rejected this claim because Ms. Graham’s convictions for aggravated assault were

overturned on appeal. The correctness of that rejection is not debatable. “The

government may submit multiplicitous charges to the jury,” United States v.

Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005), so long as multiple convictions on

the charges are not permitted to stand, see id. Consequently, we need not address

whether the charges against Ms. Graham were, in fact, multiplicitous.

C. Prosecutorial Misconduct

Ms. Graham contends that the prosecutor’s closing argument misstated the

evidence against her and improperly impugned her credibility. To prevail on a

claim of prosecutorial misconduct, a “defendant must establish that the

prosecution’s conduct or remarks so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” Hamilton v. Mullin, 436 F.3d

1181, 1187 (10th Cir. 2006) (internal quotation marks omitted). The Kansas

Supreme Court ruled that Mr. Graham was not entitled to relief on these

contentions and the district court agreed. No reasonable jurist could debate the

district court’s decision.

1
Ms. Graham raised a related collateral-estoppel argument in her habeas
application but she does not challenge the district court’s rejection of that
argument in her request for a COA or her brief to this court.

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 D. Summary Denial of Collateral Relief

Ms. Graham contends that the state courts improperly acted summarily in

denying her motion for collateral relief. As the federal district court ruled,

however, such a claim does not state a ground for habeas relief. See Sellers v.

Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (habeas relief must be founded on an

attack on “the judgment which provides the basis for . . . incarceration,” not an

attack on a proceeding collateral to that incarceration).

E. Procedural Defaults

Ms. Graham concedes that her habeas application raised eight claims that

she failed to pursue on direct appeal. 2 The district court concluded that these

claims of trial error were procedurally defaulted. In Kansas the failure to

2
The district court accurately summarized these claims as follows:

(1) the court’s reply to the jury question of the definition of
premeditation prejudiced the outcome of the case and deprived her of
a fair trial; (2) the exclusion of evidence by the court permitted
malicious prosecution; (3) the court violated her rights when it failed
to present her theory of suicide in a lesser charge to the jury; (4) the
State committed prosecutorial misconduct by knowingly presenting
false testimony or implied findings to show that her claim had no
merit; (5) the court sequestered her from conferring with defense
counsel after calling a recess; (6) a potential juror raised a racial
issue and the court’s response gave the impression of racial
partiality; (7) the trial court erred in failing to request a change in
venue; (8) the Kansas doctrine for attempted murder diminishes the
State’s burden of proof and was not used in her case with the
legislative intent.

Graham v. Koerner, No. 06-3317, 2008 WL 4186874, at * 3 (D. Kan. Aug. 5,
2008).

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challenge a trial error on direct appeal results in a procedural default unless (1)

the error is one “affecting constitutional rights” and (2) “exceptional

circumstances excus[e] the failure to appeal” on the issue. Kan. Sup. Ct.

R. 183(c). To establish exceptional circumstances, a defendant must show “(1)

ineffective assistance of trial counsel in failing to object regarding an issue; (2)

ineffective assistance of direct appeal counsel in failing to raise the issue; or (3)

newly discovered evidence or an unforeseeable change in circumstances or

constitutional law unknown to counsel and the movant at the time of trial and

direct appeal.” Bledsoe v. State, 150 P.3d 868, 877 (Kan. 2007).

It is not clear from Ms. Graham’s submissions how each of the eight claims

she first raised in her § 2254 application involved a constitutional right. In any

event, the two excuses she has proffered for not raising issues on direct appeal are

not extraordinary. One is that her counsel was not aware of certain facts,

although she was. But newly discovered evidence excuses the failure to appeal an

issue only if it was “unknown to counsel and the movant.” Id. (emphasis added).

The other proffered excuse is that she did not learn of one incident of

prosecutorial misconduct until “following her conviction.” Aplt. Br. at 20. But

she does not allege, as she must, that she was unaware of this evidence at the time

of her direct appeal. See Bledsoe, 150 P.3d at 877 (must be unaware of evidence

“at the time of trial and direct appeal”).

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 Ms. Graham could overcome the state procedural bar by showing “cause

and prejudice or a fundamental miscarriage of justice.” Cannon v. Mullin, 383

F.3d 1152, 1172 (10th Cir. 2004) (internal quotation marks omitted). But she has

made no showing beyond the above arguments regarding state procedural bar. No

reasonable jurist could dispute the district court’s ruling on procedural bar.

F. Additional Issues

In her request for a COA from this court Ms. Graham raises several issues

not raised in her habeas application. None warrants relief.

First, Ms. Graham argues that the district court unreasonably delayed

adjudication of her habeas application. This is not a cognizable habeas claim.

Although a delay in collateral proceedings can “work a denial of due process,”

requiring action by this court, such delay “does not give rise to an independent

due process claim that would justify granting a defendant habeas relief.” United

States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (internal quotation marks

omitted).

Second, Ms. Graham argues that the district court improperly denied her

request to be released pending adjudication of her habeas application. But to be

entitled to this extraordinary remedy, an applicant must demonstrate “exceptional

circumstances” or “a clear case on the merits of the habeas petition.” Pfaff v.

Wells, 648 F.2d 689, 693 (10th Cir. 1981). As the district court found,

Ms. Graham failed to establish either prerequisite.

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 Third, Ms. Graham contends that the district court was biased against her.

Ms. Graham has not provided factual allegations to substantiate this claim. Her

view appears to be that the district court was biased because it denied her relief.

But it is well established that “adverse rulings cannot in themselves” support a

charge of judicial bias. Nickl, 427 F.3d at 1298 (internal quotation marks

omitted).

Fourth, Ms. Graham seeks habeas relief on the ground that upon release she

will be subject to registration requirements enacted after her conviction, in

violation of the Ex Post Facto Clause. But this claim for relief was not included

in her § 2254 application. We do not review claims for relief not raised below.

See Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005).

Fifth, Ms. Graham contends that on direct appeal the Kansas Supreme

Court improperly relied on State v. Bryant, 38 P.3d 661, 666 (Kan. 2002). But

errors of state law do not warrant federal habeas relief. See Bullock v. Carver,

297 F.3d 1036, 1055 (10th Cir. 2002).

III. CONCLUSION

Ms. Graham has not made a “substantial showing” that her constitutional

rights were denied. 28 U.S.C. § 2253(c)(2). We therefore DENY her application

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for a COA and DISMISS this appeal.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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